Legal anvil hovers over the unwary tech user

You sign up for a web service. You violate the terms and conditions. What's the worst that could happen?

Aaron Swartz was 24. No saint, he hid a laptop and a hard drive in a cupboard at the Massachusetts Institute of Technology, signed up to the journal storage service JSTOR, and began downloading.

About 5 million journal articles later (there was apparently an allowable limit but neither JSTOR nor the MIT enforced it), he was arrested and charged with computer fraud.

JSTOR did not want him charged. It felt he had merely broken a contract. It asked for the copies back and left it at that. Going further would be ''like trying to put someone in jail for allegedly checking out too many books from the library'', was how one of his friends put it.

If Swartz had broken any other sort of contract, say one involving real estate or the purchase of a multimillion dollar corporation, the authorities could not have touched him. Those sort of contracts, no matter how big, are settled between the parties, through litigation if necessary.

But in the US, contracts involving computing services are different. The US Computer Fraud and Abuse Act makes it a crime to violate a website's terms of service where a sum of more than $5000 is involved. There does not need to be a victim and or even a complaint.

The Secret Service took over the investigation, just as it had that of Bradley Manning, who is charged with handing classified files to WikiLeaks, also in part under the disturbingly broad Computer Fraud and Abuse Act.

An Obama appointee, US Attorney Carmen Ortiz grandstanded, issuing a press release declaring: ''Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.'' Her office refused to plea-bargain unless Swartz pleaded guilty to every single charge.

On January 11, two years into his ordeal, Swartz killed himself. He was 26. At last week's funeral his father said he was ''pushed to his death by the government''.

An expert in computer protection who was due to speak at the trial said if he had been asked whether what Swartz did was wrong, he would have replied that it was ''inconsiderate, in the same way it is inconsiderate to write a cheque at the supermarket while a dozen people queue up behind you or to check out every book at the library''.

It looks as if the authorities wanted to make an example of Swartz. He was part of the successful fight against the punitive Stop Online Piracy Act. At 13, he helped design the RSS code that many of us use today to keep up to date with websites. He had previously distributed for free costly US court records and come to the attention of the FBI.

In an extraordinary intervention shortly before Swartz's death, JSTOR made a limited version of its service available for free worldwide. It may have been what Swartz was trying to achieve. In a tribute, it described Swartz as ''a truly gifted person who made important contributions to the development of the internet and the web, from which we all benefit''.

''The case is one that we ourselves had regretted being drawn into from the outset,'' it said. ''Our mission is to foster widespread access to the world's body of scholarly knowledge''.

In response, Democratic congresswoman Zoe Lofgren has drafted ''Aaron's Law'', an amendment to the Computer Fraud Act that would specifically prevent violations to the terms and conditions of a web service being treated as crimes.

But she will be up against forces as powerful as the gun lobby - and they extend to Australia.

Early one morning in 2003, the Australian Federal Police raided the weatherboard house Hew Griffiths shared with his father on the NSW central coast and charged him with breaking a US law.

His crime had been to share illegally downloaded software. He had never been to the US. Like most Australians, he had assumed he wasn't subject to US law.

The former prime minister John Howard's justice minister, Chris Ellison, refused to intervene (the government was negotiating the US-Australia free trade agreement at the time). Griffiths became the first foreign national anywhere to be forcibly taken to the US to face copyright charges.

''Whether committed with a gun or a keyboard - theft is theft,'' declared the then US attorney Chuck Rosenberg, hailing the precedent. ''For those inclined to steal intellectual property here, or from halfway around the world, they are on notice that we can and will reach them.''

Facing 10 years in prison, Griffiths pleaded guilty and served six months. He was well-treated. He told me later the US was ''good at running prisons''. The three years he had spent in Sydney's Silverwater Detention Centre fighting the extradition were much less pleasant.

Australia's decision to surrender sovereignty over Griffiths took place as it made another key decision. In order to get the free trade agreement through, it agreed to make intellectual property part of Australia's criminal as well as civil law. Our government (or the US government for that matter) is free to prosecute an Australian for a breach of copyright and threaten a jail term whether or not the injured party minds. It can be pressed into taking action the injured party would otherwise have to take itself.

The US is pushing for even more in negotiations under way over the Trans-Pacific Partnership trade agreement.

We should say no.

Peter Martin is economics correspondent.

Twitter: @1petermartin

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